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Christina Hernandez v. Michael J. Astrue

December 8, 2010


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


Plaintiff was born in 1975, has an eleventh-grade education, and previously worked as a janitor at a convalescent home, an inspector at a packing house, a cook at a fast-food restaurant, and a care provider. (Administrative Record ("AR") 97, 499, 503-08.)

On September 11, 2004, Ekram Michiel, M.D., performed a consultative psychiatric evaluation of Plaintiff. (AR 190-92.) Dr. Michiel opined that Plaintiff was (1) able to maintain attention and concentration and to carry out one or two-step simple job instructions, (2) able to relate and to interact with co-workers, supervisors, and the general public, and (3) unable to carry out an extensive variety of technical and/or complex instructions. (AR 192.)

On May 3, 2005, Plaintiff filed applications for DIB and SSI, alleging disability beginning on February 13, 2003, due to numbness in the legs and hands, diabetes, depression, thyroid problems, and forgetfulness. (AR 21, 92-93, 96.) The Commissioner denied Plaintiff's applications initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR36-65.)

On May 4, 2007, ALJ Christopher Larsen held a hearing in which Plaintiff and a vocational expert ("VE") testified. (AR 493-536.) In his decision, the ALJ noted Plaintiff's testimony as follows:

[Plaintiff] said she gets rides since she has no driver's license, and last took the bus three years ago. She said she has a hard time leaving her home. [Plaintiff] testified she has no feeling in her hands, and drops things and burns herself. She stated she has diabetes, headaches, and depression. She said she tries to follow the diet but cannot eat all the time. She stated she has low energy, and sleeps all day five times a week. [Plaintiff] testified she can lift less than five pounds and has trouble pinching things. She said she can hold a pencil and write for five minutes. She said she has numbness from her toes to the outside of her thigh, which the doctor said was nerve [damage] from falling. She said she had to be retrained to walk. [Plaintiff] testified she takes all of her medication on time. She said she gets migraine headaches two to three times a week and they last all day. She said she sleeps four to five hours during the day when she has a headache, and she takes over-the-counter medications. [Plaintiff] said she cries for no reason and sleeps to feel better. She stated she can concentrate for an hour with a three-hour break, and sometimes forgets her own address. She testified she has suicidal thoughts twice a month, but is not taking medication for her mental problems now and has not seen a psychiatrist for six or seven months. (AR 29.)

The VE testified that Plaintiff's past work as a care provider and a fast-food cook is medium and semi-skilled, her past janitorial work is medium and unskilled, and her past work as a cashier is light and unskilled.*fn2 (AR 531.) A hypothetical person of Plaintiff's age, education, and work experience could perform Plaintiff's past work as a cashier, packager, and care provider as she performed it if that person could (1) lift and carry 50 pounds occasionally and 25 pounds frequently; (2) stand and walk for six hours and sit for six hours; (3) occasionally climb, stoop, and crouch; (4) frequently balance, kneel, and crawl; and (5) understand, remember, and carry out simple, one or two-step job instructions. (AR 532.) Such a person could not perform any work if that person needed additional rest periods and missed one to two days of work per month because of severe depression. (AR 533.) The VE's testimony was consistent with the Dictionary of Occupational Titles (the "DOT").*fn3 (AR 534.)

On August 22, 2007, the ALJ issued a decision finding Plaintiff not disabled since February 18, 2003. (AR 18-31.) Specifically, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since the alleged onset date of disability of February 18, 2003; (2) has an impairment or a combination of impairments that is considered "severe" based on the requirements in the Code of Federal Regulations; (3) does not have an impairment or combination of impairments that meets or equals one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1; and (4) could perform her past relevant work as a care provider, cashier, and janitor. (AR 23-30.) The ALJ found that Plaintiff had the residual functional capacity ("RFC") to (1) lift and carry 50 pounds occasionally and 25 pounds frequently; (2) balance, kneel, and crawl frequently; (3) climb, stoop, and crouch occasionally; and because of her depressive and anxious symptoms, (4) to "understand, remember, and carry out simple one- or two-step job instructions." (AR 24, 28.) Plaintiff sought review of this decision before the Appeals Council. On August 13, 2009, the Appeals Council denied review. (AR 5-7.) Therefore, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481.

On October 13, 2009, Plaintiff filed a complaint before this Court seeking review of the ALJ's decision. Plaintiff contends that the ALJ erred in determining that Plaintiff could return to her past relevant work.


The ALJ's decision denying benefits "will be disturbed only if that decision is not supported by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). In reviewing the Commissioner's decision, the Court may not substitute its judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must determine whether the Commissioner applied the proper legal standards and whether substantial ...

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